Law Review Articles
Corruption of Blood, Sovereign Forfeiture, and Property
By Lawrence J. Casella
Copyright 1997 Lawrence J. Casella
Corruption of Blood. Mention it and collective judicial eyes roll to the back of their collective judicial heads. Yet, in every way except in name, blood corruption is as alive today as it ever was.
To understand why, one must look to the history of corruption of blood and its relationship to forfeiture.
At English common law, real property was forfeited to the sovereign only upon conviction of high treason. For all other felonies, it escheated to the lord of whom the convicted felon held.1 Note the distinction in the disposition of the real property for treason and for other felonies. A convicted traitor's real property was forfeited while the convicted felon's escheated. This distinction is frequently overlooked and often confused.2
For the English, escheat for the conviction of a felony was logical and natural according to their view of real property law.3 Their system was strictly hierarchical. At the top, a few lords owned all the land. When they sold part of it ("subinfuedination"), the grantee was said to "hold of" that lord: "...today it is still the law that all land is 'held', and since it must be held by some tenure we say it is held in free and common socage."4 In exchange for the grant, the grantee would promise personal services to the lord: to provide knights, to provide a pair of gloves or a lance, etc.5
When the grantee was convicted of a felony, he was considered to have breached his obligation to serve his lord faithfully.6 Consequently, the lord no longer had an obligation to grantee and the property reverted back to him as grantor. According to Blackstone, the idea of forfeiture was older than that of felony: any crime that caused a forfeiture was a felony.7 In other words, felonies did not cause forfeitures, forfeitures caused felonies.
Eventually real property conveyancing became more businesslike and promises of personal services were less important. Nevertheless, the lords still liked the chance to receive a windfall: they had the rule of escheat but no reason behind it. Then lawyers hit upon the idea of corruption of blood: "...lawyers attributed the escheat in cases of felony to the curious and biologically absurd notion that the felon's blood was 'corrupted', whatever that may mean, so that inheritance was impossible through him."8
To add to the confusion of when property escheated and when it was forfeited, the sovereign was often the lord of property subject to escheat.9 If a person who "held of" the sovereign were convicted of a felony, his real property would escheat to the sovereign, not in the sovereign's capacity as sovereign, but in the sovereign's capacity as lord of the fief. So it may appear that the convicted felon forfeited real property for conviction of a felony in a case where the property had actually escheated.10
Within this system, the legal explanation for escheat, that is, the reason behind the rule, was founded upon corruption of bloodlines. In English common law, bloodlines terminated for two reasons: propter defectum sanguinis, on account of failure of blood, and propter delictum tenentis, on account of crime of the holder or tenant.11 Propter defectum sanguinis is easily understood since it is still recognized today.
A person whose blood was corrupted was legally dead. Not only dead, but dead without any blood relatives:
By corruption of blood all inheritable qualities are destroyed; so, that an attainted person can neither inherit lands, nor other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them to any heir. And this destruction of all inheritable qualities is so complete, that it obstructs all descents to his posterity, whenever they are obliged to derive a title through him to any estate of a remoter ancestor. Joseph Story, Commentaries on the Constitution of the United States, ß1299, p. 169.
As a legal issue, then, corrupt blood and its legal consequence were only pertinent in connection with conviction of a felony. Corrupt blood was not even an issue for a forfeiture as a consequence of high treason, since that was a true sovereign forfeiture.12 The only consequence of corrupt blood was that the person whose bloodline was corrupted, lost all his property forever.
Today, termination of the blood line on account of a crime seems a quaint notion from a ruder age. We do not believe in these biological absurdities anymore, right? But corruption of blood was offered as the only reason behind the rule of a fee forfeiture of the property of convicted felons.13 Therefore, if a person has his property taken from him, and if his heirs are likewise dispossessed, it can only be because his blood is corrupted. The eye-rolling jurists of today endorse the results of corruption of blood in every respect except calling it what it really is.
The notion of corruption of blood and attendant escheat was so natural to the English law that any felony newly created by statute had to expressly exclude corruption of the blood, if it was not intended to be worked.14
This was the state of English law at the time of the American Revolution. If Americans wanted to prohibit forfeitures for conviction of felonies, it was necessary to prohibit corruption of the blood. Consider the following two provisions from the federal and Pennsylvania constitutions respectively.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. Article III, Section 3, U.S. Constitution.
No attainder shall work corruption of blood, nor, except during the life of the offender, forfeiture of the estate to the Commonwealth. Declaration of Rights, Article I, Section @, Pennsylvania Constitution
Prohibiting both corruption of blood and forfeiture were necessary to prohibit forfeiture.15 If corruption of blood had not been prohibited, conviction of a felony would have necessarily corrupted the blood according to the common law.16 Since the only consequence of corrupt blood is forfeiture, the very thing intended to be prohibited would have necessarily been accomplished. The constitutional provisions cited above expressly negate the common law construction of the statute; they were to be a guide for judicial construction.
Moreover, when the framers of the US constitution prohibited forfeiture and corruption of blood for treason, they prohibited all government forfeitures. Forfeited property went to the crown, the government, and escheated property went to the lords, private parties. At common law, government forfeiture was available for treason only, not for felonies. The framers did not, and could not, prohibit government forfeitures for the conviction of felonies, because, according to the common, they did not exist.
Furthermore, since government forfeitures for felonies did not exist at common law, the people could not possibly have granted the federal government the power to these statutes. Such a grant of power would have been in derogation of the common law and would necessarily have to have been expressed.
Finally, the principle of expressio unius est exclusio alterius alone excludes the possibility of federal sovereign forfeiture for any crime, treason or not. Treason was the only instance where the common law recognized fee forfeiture to the government. Article III, Section 3 of the US constitution expressly negated that. If the constitution was intended to permit sovereign forfeitures for felonies in derogation to the common law, it would have to have been expressed.
Even if government forfeitures for felonies existed at common law, the federal legislature could not possibly derive power to pass forfeiture statutes from the common law. Reliance on the common law is, in itself, an admission that the power is not delegated in the constitution. If the power were granted and expressed in the constitution, why be concerned with the common law? The power to pass forfeiture statutes is neither one of the "foregoing powers" nor one of the "other powers vested by this Constitution." It cannot, therefore, be one which is "necessary and proper."
It has been shown that these modern theories of statutory forfeiture do not involve any principles of common law, that they result in the corruption of blood in violation of constitutional prohibitions, and that they are unauthorized by the constitution. They are recent judicial fabrications. If the federal legislature has the power to pass forfeiture statutes from the common law, then it also has the power to pass real estate or divorce statutes for the same reason. Though no court would subscribe to this reasoning for divorce or real estate law, it apparently wins with respect to forfeiture law.
Consider the case of Calero v. Toledo, 416 U.S. 663; 94 S. Ct. 2080; 1974 U.S. LEXIS 140; 40 L. Ed. 2d 452.17 Pearson Yacht Leasing Co. had leased a yacht to some Puerto Rican residents. Though nobody at Pearson knew, the lessees had taken some marijuana aboard the leased vessel. Puerto Rican authorities later found the pot, and, under a Puerto Rican statute, they seized, then forfeited, the yacht without giving Pearson a chance to be heard.
The question in Calero was whether a state statute by which an innocent party's property was forfeited violated the federal constitution. Specifically, Pearson, an innocent party, contended that its due process was violated by failure to have a hearing and that its property was taken without just compensation. The Court's opinion went into a fantastical history of forfeiture. First, it talked generally about how states have the power to pass forfeiture statutes.18
Then the court considered the specific history of forfeiture law and why a state could impose forfeitures. First, the court says that the English worked forfeitures through deodands. But deodands never caught on in America, so that wasn't the answer. Next, the court says that the English used to escheat the real property of convicted felons to the lords, and forfeit his personal property to the king. But that's not the reason here either: Pearson was not convicted of any crime. In fact, all parties admitted that Pearson did not know of the illicit activity.
Having rejected these straw men, the court concluded that the reason states could pass forfeiture laws was that
Furthermore, the court itself said that deodands are not part of American law. (How can the court say this for every jurisdiction? Did it review the state constitutional law for every jurisdiction?) Therefore, even if the court's own speculation on the "confluence and merger" were true, the deodand prong of this supposed merger is eliminated, leaving "the belief that the right to own property could be denied the wrongdoer" as the sole justification for government forfeiture. According to the opinion, the state's power to pass forfeiture legislation is this: American states can pass forfeiture statutes because the English Parliament did because it believed the right to own property could be denied a person even if he did not commit a crime.
The "belief" of a legislature is an irrelevance in American jurisprudence. American case reporters are filled with cases where the legislators believed people should not speak, where they believed people of different races should go to different schools, etc.
It's one thing for a state legislature to deny a person the right to own property, but quite another for the federal government to do so. States have exclusive jurisdiction over property.20 The federal government does not have the power create property interests, it only protects them. (This has been upheld and propounded in an endless line of 42 U.S.C. ß1983 cases.)
It does not even have a vestigial interest in property. For example, abandoned or unowned property escheats to the state as an incident of its common ownership, not to the United States.21 The federal government cannot create, uncreate, or modify that which the states have exclusive authority over.
Title 21 U.S.C. ß881 goes far beyond asserting that the federal government has a vestigial property interest in all property. It declares "[t]he following shall be subject to forfeiture to the United States and no property right shall exist in them..." Any first-year law student would recognize this as the language of a fee simple subject to a condition subsequent. In such a grant, the owner conveys property to the grantee subject to a condition on its use. If the condition is violated, the property reverts to the grantor by operation of law. A judicial decree merely confirms the breach.
The language in 21 U.S.C. ß881 purports to extinguish a person's rights in property. It matters not what "the following" is. Because once this reasoning is accepted, anything can be listed as "the following," for no legal argument can be successfully made against it. What would prevent the federal legislature from passing a statute declaring an automobile subject to forfeiture to the United States and no property right exists in it for overtime parking?
Even more curious from the language of 21 U.S.C. ß881 is the implication that the United States government has paramount title to all property, real and personal, in the United States. It raises the question of when, where, and how did the United States come to hold paramount title to all property? Since states existed before the federal government was formed, the federal constitution would have to be interpreted as a grant of property. When new states joined the union, their admission would have to be interpreted as a grant. Moreover, the United States government would have to equate itself with the king of England. Putting aside the Statute of Frauds difficulties, a federal claim of paramount title of all property in the United States is patently ridiculous.